Symposium: Precedent dictates a win for the plaintiffs in this term’s partisan-gerrymandering cases

Guy-Uriel E. Charles is the Bennett Boskey Visiting Professor of Law at Harvard Law School and Edward and Ellen Schwarzman Professor of Law at Duke Law School. Luis E. Fuentes-Rohwer is Professor of Law and Harry T. Ice Faculty Fellow at Indiana University Bloomington Maurer School of Law.

In Lamone v. Benisek, a three-judge federal district court in Maryland concluded that Maryland Democrats intentionally moved 66,000 Republican voters out of Maryland’s Sixth Congressional District in order to turn a district that would more or less reliably elect a Republican member of Congress into one that would elect a Democrat. That court agreed with the plaintiffs, Republican voters who lived in the district, that the state intentionally diluted their votes. In Rucho v. Common Cause, a three-judge federal district court in North Carolina concluded that Republicans intentionally packed and cracked Democrats in constructing North Carolina’s 2016 congressional redistricting plan. That court agreed with the plaintiffs, Democrats who resided in each of the state’s 13 congressional districts, that the North Carolina plan violated the U. S. Constitution by intentionally diluting their votes.

If we are lucky, the Supreme Court will use Benisek and Rucho to decide whether political gerrymandering claims are justiciable — whether the federal courts can serve as a check on the political process and safeguard a baseline conception of the effectiveness of the right to vote — and not duck the issue as it did last term in Gill v. Whitford. If we’re really lucky, the court will decide the cases in favor of justiciability. And if the stars align just right, the court will also articulate a framework for resolving political-gerrymandering claims.

Sophisticated court-watchers are not expecting us to be so fortunate. They are, rationally, predicting a 5-4 decision in which the conservative justices decide conclusively that the Constitution does not forbid politicians from drawing district lines that dilute the votes of individual voters even if the goal is to maximize their political advantage and to punish the opposition party. But as scholars who have long argued that political-gerrymandering claims are justiciable because they raise the same constitutional harms that the Supreme Court has addressed in its prior precedents, we are cautiously, and perhaps foolishly, optimistic. The Constitution already protects individual voters from the intentional dilution of their votes, notwithstanding the political identity of the voters.

The Supreme Court has long struggled with the question of the justiciability of political-gerrymandering claims. Too long. However, the answer to the question whether political-gerrymandering claims are justiciable is not that hard. For more than 50 years, ever since the court decided Baker v. Carr, the landmark 1962 case in which voters from Tennessee complained that the state’s malapportioned state legislative districts violated the equal protection clause, the Constitution has served as an effective limit on the propensity of politicians to manipulate election districts for their own political gain. Then, as now, the Supreme Court had to decide whether these types of political cases are justiciable. The court in Baker overturned a 15-year-old precedent, Colegrove v. Green, and concluded that the Constitution imposes some basic ground rules on how democratic politics can and ought to be contested. It agreed with the Baker plaintiffs that the 14th Amendment precludes the government from drawing district lines in a manner that dilutes the votes of individual voters. The court equated vote dilution through malapportionment with ballot stuffing by the state or a decision by the government to arbitrarily count some votes and not others. As a consequence of Baker and a later case, Reynolds v. Sims, intentional vote dilution is now firmly actionable, at least in the context of malapportionment.

But the Supreme Court has never limited intentional-vote-dilution claims to the malapportionment context. In particular, the court has long recognized that the government violates the equal protection clause when it intentionally dilutes an individual’s right to vote because of the individual’s race. For example, in the 1973 case of White v. Regester, the Supreme Court affirmed a lower court’s opinion holding that multi-member districts, in conjunction with other factors, can serve to dilute the votes of African-American and Mexican-American voters. Additionally, there is a long and robust line of cases, starting with the 1986 case of Thornburg v. Gingles, stating that racial vote dilution violates Section 2 of the Voting Rights Act. Moreover, the court has liberally applied its racial-vote-dilution jurisprudence in the context of political gerrymandering. That is, when there is a political gerrymandering that results in the dilution of the votes of African-American voters, those voters have a right of redress under the Voting Rights Act. And if the vote dilution is intentional, those voters also have a right of redress under the equal protection clause.

Thus, as a matter of precedent, the Supreme Court has long recognized that vote-dilution claims are justiciable. It has resolved vote-dilution claims in the context of malapportionment and it has resolved them in the context of political gerrymandering. To be sure, the political-gerrymandering claims involved racial vote dilution and not partisan gerrymandering. Nevertheless, there are two distinct and established lines of cases holding that vote dilution is cognizable as constitutional harm.

The Supreme Court can and should, in Benisek and Rucho, make clear that vote-dilution claims are cognizable whether the voters alleging a violation of their constitutional rights are voters of color or urban dwellers, Republicans or Democrats. There is no clear reason for recognizing vote dilution as a constitutional harm when the individual voters who allege dilution are urban dwellers, rural voters, Mexican Americans, white, or African Americans but not when they are Republicans or Democrats. The Supreme Court would never allow a state to require voter identification for voting only if the voter identifies as a Republican (or a Democrat). The court would easily strike down a law that allows Democrats (or Republicans) to register to vote on election day but requires Republicans (or Democrats) to register 20 days before an election. In Reynolds, decided in 1964, the court observed that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” If individual voters can show, as the voters in Benisek and Rucho demonstrated to the satisfaction of the respective lower courts, that the government diluted their votes because of their political identity, under a straightforward reading of the court’s precedents they have alleged a cognizable constitutional violation.

Critics of judicial supervision of partisan-gerrymandering claims have stated that unlike the malapportionment cases, for which the one-person, one-vote principle offered a clear, pseudo-mathematical and easily manageable standard, the partisan-gerrymandering cases do not have a similar standard waiting in the wings. Justice Felix Frankfurter consistently complained that judicially manageable standards are unavailing in dilution cases, though he was obviously wrong about that. This also explained Justice Anthony Kennedy’s reluctance in recent years to rule in favor of plaintiffs in political-gerrymandering cases. Judicial intervention requires standards for reaching a decision. To the critics, no such standards exist.

As a response, advocates of justiciability have turned to math, in particular the ill-advised and ultimately ill-fated efficiency gap, to demonstrate the availability of a manageable standard. But both the critics and the advocates misunderstand what the Supreme Court means when it asks for a judicially manageable standard. The court is not asking for a mathematical or empirical standard — those are relevant to show the existence and magnitude of the burden. Rather, the court is asking for a legal principle that is drawn from traditional legal sources — such as the text of the Constitution or the court’s past precedents — to resolve these cases.

Again, the Supreme Court’s past precedents are a useful guide. The court has long recognized that voting is a fundamental right. When the government dilutes an individual’s right to vote because of the individual’s political identity — because he or she is a Republican (or a Democrat) or because the government thinks that the voter might, unadvisedly in the government’s perspective, vote for a Democrat (or a Republican) — the government ought to provide a very good justification. This standard is familiar to first-year law students and is undoubtedly judicially manageable. For example, if the government assigned Democrats two votes and Republicans one, the Supreme Court would easily conclude that the government had violated the Constitution, specifically the 14th and the First Amendments.

The key to winning the political-gerrymandering cases is to help the Supreme Court to see that these cases are seamlessly consistent with what it has done before. This is not a new idea. In his concurring opinion in Whitcomb v. Chavis, Justice William Douglas observed that “the problem of the gerrymander is the other half of Reynolds v. Sims.” The lower-court judges in both Benisek and Rucho recognized that they could draw from the court’s past precedents to resolve political-gerrymandering claims. If the plaintiffs and their lawyers can convince the Supreme Court to do the same, they win.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.